Com. v. DeStefano

• Decision Date: 22 June 1983
• Citation: 16 Mass.App.Ct. 208,450 N.E.2d 637
• Parties: COMMONWEALTH v. Doris DeSTEFANO.
• Court: Appeals Court of Massachusetts

Page 637

450 N.E.2d 637

16 Mass.App.Ct. 208

COMMONWEALTH v. Doris DeSTEFANO.

Appeals Court of Massachusetts,

Suffolk.

Argued April 25, 1983.

Decided June 22, 1983.

Ronald Ian Segal, Everett, for defendant.

Jeffrey B. Abramson, Asst. Dist. Atty., for the Commonwealth.

Before GREANEY, CUTTER and PERRETTA, JJ.

GREANEY, Justice.

The defendant, Doris DeStefano, was convicted following a jury-waived trial in the Superior Court on an indictment (no. 78-2510) charging two counts of arson of a dwelling house, G.L. c. 266, § 1, and an indictment (no. 78-2513) charging two counts of burning property with intent to defraud an insurer (G.L. c. 266, § 10). She was sentenced to concurrent state prison terms on all of the convictions, with the sentences suspended for a period of two years' probation. ¹ The defendant claims (1) that her motion for required findings of not guilty should have been allowed as to all charges; (2) that she was improperly denied a continuance to obtain the testimony of a necessary defense witness; (3) that the colloquy held with her by the trial judge concerning waiver of trial by jury was deficient; (4) that certain evidence was erroneously admitted to her prejudice; and (5) that the Commonwealth's undisclosed order for daily transcripts hampered her ability to cross-examine witnesses.

On the third point a majority of the panel conclude that there was error and that a new trial before a jury is necessary. On all the other points the members of the panel are in agreement.

We shall refer to certain evidence and courtroom procedures as they become relevant to our discussion. We preface that discussion, by way of orientation, by noting that the judge had before him evidence from which he could have concluded the following. At approximately 7:15 A.M. on January 9, 1978, Winchester police sergeant Francis Manzi, responding to a radio call reporting a fire, arrived at the defendant's house at 10 Wellington Road. He kicked open the locked front door, quickly ascertained that no one was in the house, and observed smoke. No flames were seen. An electric oven in the kitchen had been turned on and the rear door had been shut but not locked. There was no sign of forced entry. Firefighters arrived shortly thereafter and discovered in a hallway a fire, which they determined to be of "suspicious origin." The defendant arrived at the house in her pink Cadillac automobile ("the only one of its kind in Winchester," according to Sergeant Manzi) soon thereafter, accompanied by Leslie Surrette, who resided there with her. The defendant appeared visibly upset. Later that morning the fire chief asked her to come to the station to discuss the incident. The defendant expressed reluctance, explaining that she was tired and had been out all night. She eventually agreed to meet with the chief. At that meeting (held at approximately 9:00 A.M. on the day of the fire, and also attended by Surrette and one of the defendant's sons), the defendant was abusive to police representatives and indicated that she would not answer their questions.

After the January 9 fire, the defendant did not live in the house. The next day, she telephoned the fire chief and complained that she was not making headway with her insurance company on a settlement. On January 12, 1978, three days after the fire, the defendant, accompanied by Surrette, appeared in the Burlington offices of her insurer, where she was loud and boisterous and complained of having no money and no place to stay. She said she was sleeping in her car and attempted (without success) to obtain an advance on insurance proceeds.

On January 29, a second fire broke out at 10 Wellington Road. Approximately one hour before the fire department arrived the defendant's distinctive pink Cadillac was observed in front of the house. The trunk of the vehicle was open and a bulky garbage bag was seen on the street behind the car. The garage door was open. Surrette had been seen leaving the house at some time on that day. Firefighters and police officers who responded discovered a fire burning in a basement playroom. In an upstairs closet they found a piece of clothing smelling of kerosene, on top of which was a candle over which had been placed a cardboard tube pierced with unlit matches. A second article of clothing smelling of kerosene was discovered in the garage. On January 30, 1978, the day after this fire, the defendant called the fire chief and inquired about the investigation of the first fire. The chief informed her of the fire of the preceding day and the defendant sounded surprised. On this date the defendant stated that she had no set address and was moving around from one motel to another.

The judge also could have found that in December, 1977 (about one month before the fires), the defendant and Surrette approached a real estate agent about renting an apartment, and that, with the agent's help, they located an apartment in Malden. The apartment was rented in Surrette's name, ² effective December 15, 1977. The application stated that two adults would occupy the unit and listed a California address for Surrette. The landlord was told that the defendant would be coming in to cook, clean and help out Surrette. The defendant inquired of the landlord if personal property could be moved in prior to December 15. Beginning Christmas morning, the defendant and Surrette were seen moving items into the apartment. This activity took place over a period of approximately one week, always during early morning hours.

On February 1, 1978, there was a fire in the Malden apartment house. An upstairs tenant discovered the fire and warned Surrette, the defendant and a young man (apparently the defendant's son), who were asleep in the apartment. After the fire, Surrette told a firefighter that his name was "Wesley Lanete." The landlord's daughter overheard this and called to Surrette's attention the discrepancy between this name and the one on the rental application ("Lester Surrette"). Both Surrette and the defendant told her that the name on the application was a mistake. The defendant refused to identify herself to firefighters, and Surrette later told a police officer, in the defendant's presence, that her name was "Dorothy Marrota." The defendant did not correct this misinformation. On the day of the fire there, the Malden apartment was furnished with several pieces of heavy furniture and contained a number of boxes of personal effects.

At the time of the January fires the defendant had two mortgages on the Wellington Road property and was several months behind on her payments. In December, 1977, she had arranged to have the insurance coverage on the house increased by some $15,000 after a discussion with her insurance agent concerning the adequacy of her coverage.

1. The motion for required findings of not guilty. The defendant argues that in four particular respects the evidence was insufficient to support convictions, necessitating required findings of not guilty which, on proper motion, see Mass.R.Crim.P. 25(a), 378 Mass. 896 (1979), were denied by the trial judge. We address these claims in order.

a. Use of liquid accelerant. The defendant asserts that the Commonwealth was bound by its bill of particulars to prove, as alleged in the bill, that the arsons were accomplished by means of "a liquid accelerant of unknown identity ... used along with ignition by means of an open flame or match" and that since the evidence introduced was insufficient to satisfy this burden, directed findings were required. We disagree.

"General Laws c. 277, § 35, provides that a variance between the allegations and proof shall not be a ground for the defendant's acquittal 'if the essential elements of the crime are correctly stated, unless he is thereby prejudiced in his defence'." Commonwealth v. Day, 387 Mass. 915, 922, 444 N.E.2d 384 (1983). The defendant does not contend that the essential elements of arson have not been alleged. Nor does she claim that any variance between the particulars and the proof at trial had the effect of prejudicing her defense. She asserts that the evidence was not of sufficient weight to warrant a finding that liquid accelerants were used in fires ignited by a match or open flame. Neither the use of accelerants nor any particular method of ignition are essential elements of arson. At trial, the defense did not contend that the fires were accidental, claiming instead that they were set by someone "out to get" either her or Surrette. Thus, even if we accept the defendant's contention that proof of the use of liquid accelerants as alleged in the particulars was lacking, that failure of proof must be seen as relative only to a collateral issue and not prejudicial to the defense in any way. ³ See Commonwealth v. Conceicao, 10 Mass.App. 899, 409 N.E.2d 816 (1980). See also Commonwealth v. Atkinson, 15 Mass.App. 200, 202-203, 443 N.E.2d 1371 (1983).

b. Characterization as "dwelling house." The crime defined by G.L. c. 266, § 1, as appearing in St.1948, c. 43, § 1, may only be committed against "a dwelling house, or a building adjoining or adjacent to a dwelling house, or a building by the burning whereof a dwelling house is burned." No evidence was introduced as to whether 10 Wellington Road was adjacent to or adjoined any dwelling house. The fires were totally contained within the structure itself. As a consequence, a conviction under G.L. c. 266, § 1, would require evidence to warrant a finding that the house was a dwelling house. The defendant asserts that the evidence requires the conclusion that as a result of the damage caused by the first fire the structure had ceased to be a dwelling house, thereby precluding her conviction under G.L. c. 266, § 1, for the second fire on January 29. The assertion has merit.

The words "dwelling house" are defined by the statute as including "all buildings used as dwellings such as apartment houses, tenement houses, ... or...